Category: 3-LawSometimeCommentary

If it's Friday, it's a current events episode, and if it's current events, we're probably talking about Donald Trump. We begin, however, with the second installment of a hopefully infrequent segment about stuff Andrew gets wrong.  In this case, it's actually two things.  First, Andrew clarifies the terminology related to immunity, and second, Andrew admits to falling for a hoax (!) In our main segment, we look at James Comey's testimony before the Senate regarding his firing.  How far up Yodel Mountain does this take us?  Listen and find out! After that, fan favorite Breakin' Down the Law returns with an analysis of what's going on with the Trump Administration's appeal of Executive Order 13780, the so-called "Muslim Ban," which we last discussed in Episode #51. Finally, we end with a brand new (and tricky) Thomas Takes the Bar Exam question #27 about the admissibility of a question on cross-examination regarding the availability of insurance proceeds.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was a recent guest on Episode #84 of the Cellar Door Skeptics podcast; give it a listen. Show Notes & Links

1. We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51.
2. Snopes debunked the Berkeley Breathed letter here.
3. The relevant obstruction statutes are 18 U.S.C § 1501 et seq.
4. The two cases Andrew found that involve valid prosecutions for obstruction of justice where the defendant used the "I hope" construction in threatening a witness are U.S. v. Bedoy, 827 F.3d 495 (5th Cir. 2016) and U.S. v. McDonald, 521 F.3d 975 (8th Cir. 2008).
5. This is the text of Executive Order 13780.

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In this freewheeling episode, Andrew walks through a recent decision in California regarding a key employee who worked on self-driving cars and was recruited by a competitor. First, however, the guys talk about Episode #73's discussion with Travis Wester and what lessons hopefully we all can take away from it, including answering a listener question from Lyman Smith on how to go about finding primary sources. Next, the guys discuss "Mr. Met" and the doctrines of factual and legal impossibility.  Can a four-fingered mascot really give anyone the "middle" finger?? In the main segment, Andrew breaks down the recent federal court opinion in California enjoining a former Waymo employee from working on Uber's self-driving car program, and along the way highlights the differences between non-compete clauses, non-solicitation clauses, and trade secrets. After that, Andrew tells a fun story in answering a listener question from Michael Grace regarding the craziest legal argument Andrew's ever heard. Finally, we end with the answer to Thomas Takes the Bar Exam question #26 about composite sketches inspired by dead witnesses.  We'll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances: None!  Have us on your show! Show Notes & Links

1. Here's the Tweet from Darren Rovell that inspired our "A" segment.
2. ..and here's the link to the Wikipedia entry on the Impossibility defense, as a good exercise in finding primary sources.
3. This is the New York Times article about the Waymo lawsuit; and the actual lawsuit can be found here.
4. Finally, you can revisit our lengthy discussion with Travis Wester in Episode #73 by clicking here.

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On March 22, 2017, the Supreme Court decided Czyzewski v. Jevic Holding Corporation. Jevic Transportation, Inc., a trucking company headquartered in New Jersey, was purchased by a subsidiary of Sun Capital Partners in 2006. In 2008 Jevic filed for bankruptcy under Chapter 11 of the Bankruptcy Code, at which that point it owed about $73 million to various creditors. Jevic’s former truck drivers then sued it for violating federal and state Worker Adjustment and Retraining Notification Acts, by failing to provide the requisite 60 days’ notice before a layoff. Separately, unsecured creditors filed a fraudulent conveyance action. In March 2012, representatives of all the major parties met to negotiate a settlement of the fraudulent conveyance suit. The representatives--except for the drivers’ representative--agreed to a settlement that would provide for payment of legal and administrative fees, a schedule for the payment of various creditors (though not the drivers), and ultimately a “structured dismissal” of the Chapter 11 bankruptcy. -- The drivers and US Trustee objected, arguing that the settlement would improperly distribute estate property to creditors with lower priority than the drivers, in violation of the Bankruptcy Code. The Bankruptcy Court rejected these objections and approved the proposed settlement. The U.S. District Court and then the U.S. Court of Appeals for the Third Circuit affirmed, holding that the Bankruptcy Court had not abused its discretion in approving a structured dismissal that did not adhere strictly to the Bankruptcy Code’s priority scheme. -- By a vote of 6-2, the U.S. Supreme Court reversed the judgment of the Third Circuit and remanded the case. In an opinion by Justice Breyer, the Court held that (1) the drivers have Article III standing to bring the present litigation; and (2) bankruptcy courts may not approve structured dismissals of Chapter 11 bankruptcy cases that provide for asset distributions which do not follow ordinary priority rules established by the Bankruptcy Code without the consent of affected creditors. Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Alito joined. -- To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

On May 1, 2017, the Supreme Court decided Bank of America Corp. v. City of Miami, which was consolidated with Wells Fargo & Co. v. City of Miami. In this case, the city of Miami sued Bank of America Corporation and similar defendants under the Fair Housing Act (FHA), arguing that the banks engaged in predatory lending practices that targeted minorities for higher-risk loans, which resulted in high rates of default and caused financial harm to the city. Miami also alleged that the banks unjustly enriched themselves by taking advantage of benefits conferred by the city, thus denying the city expected property and tax revenues. -- The district court dismissed the FHA claims and held that Miami did not fall within the “zone of interests” the statute was meant to protect and therefore lacked standing under the statute. The court also held that Miami had not adequately shown that the banks’ conduct was the proximate cause of the harms the city claimed to have suffered. The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that FHA standing extends as broadly as Article III of the Constitution permits, that Miami had established Article III standing here, and that it had sufficiently alleged proximate causation. -- By a vote of 5-3, the Supreme Court vacated the judgment of the Eleventh Circuit and remanded the case. In an opinion by Justice Breyer, the Court held that (1) the city of Miami was an "aggrieved person" authorized to bring suit under the Fair Housing Act; and (2) the Eleventh Circuit erred in concluding that the city's complaints met the FHA's proximate-cause requirement based solely on the finding that the city's alleged financial injuries were a foreseeable results of the banks' misconduct; proximate cause under the FHA requires “some direct relation between the injury asserted and the injurious conduct alleged”; the lower courts should define, in the first instance, the contours of proximate cause under the FHA and decide on remand how that standard applies to the city's claims for lost property-tax revenue and increased municipal expenses. Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Sotomayor, and Kagan. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justices Kennedy and Alito joined. Justice Gorsuch took no part in the consideration or decision of the cases. -- To discuss the case, we have Thaya Brook Knight, who is associate director of financial regulation studies at the Cato Institute.

If it's Friday, it's a current events episode, and if it's current events, we're probably talking about Donald Trump. We begin, however, with a hopefully infrequent segment about stuff Andrew gets wrong.  In this case, patron Sean Keehan corrects Andrew's numbers regarding Congressional votes. After that, we answer the actual legal question behind #covfefe -- namely, whether Donald Trump can delete his Tweets.  The answer... might surprise you! In our main segment, we look at the ongoing Senate investigation regarding Trump's ties with Russia and break down the Congress's power to conduct investigations and issue subpoenas, and the reasons people can give for failing to comply with them. After that, fan favorite Breakin' Down the Law returns with the question on everyone's lips:  is it legal for Kathy Griffin to have posed with Donald Trump's severed head? Finally, we end with a brand new (and tricky) Thomas Takes the Bar Exam question #25 about the admissibility of a composite sketch after the primary witness has unexpectedly died.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None!  Have us on your show! Show Notes & Links

1. Andrew first made the erroneous claim regarding voting results in Episode #54 on Gerrymandering, and repeated it in Episode #72.  Oops.
2. The Presidential Records Act can be found at 44 U.S.C. § 2201 et seq.
3. The case establishing the inherent power of the Congress to issue investigations dating back to the McCarthy era is Wilkinson v. U.S., 365 U.S. 399 (1961).
4. Finally, the landmark case establishing the applicable standard of "imminent incitement to lawless action" is Brandenburg v. Ohio, 395 U.S. 444 (1969).

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In this episode, the guys engage in a discussion with actor Travis Wester, who criticized the show's coverage of the Berkeley College Republicans' lawsuit back in the "C" segment of Episode #65. Travis comes on the show to criticize Berkeley's policy regarding the imposition of fees, while Andrew walks us through the various laws regarding the First Amendment's applicability to "time, place, and manner" restrictions in college classrooms. This episode went long, so we skipped our other segments, but obviously no Tuesday episode would be complete without the answer to Thomas Takes The Bar Exam Question #25 about smokin' weed and crashin' cars. Recent Appearances: None!  Have us on your show! Show Notes & Links Here are the resources discussed in this episode:

1. This is the link to the BCR/YAF (Ann Coulter) Complaint.
2. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) is the Supreme Court case decisively holding that campus groups allocating space in classrooms are a limited public forum.
3. Ward v. Rock Against Racism, 491 U.S. 781 (1989), is the landmark Supreme Court case on time, place, and manner restrictions.
4. Rock for Life-UMBC v. Hrabowski, 643 F.Supp.2d 729 (D. Md. 2009) is the D.Md. case that is directly on point with a university that has the exact same policies as Berkeley.
5. The authorizing regulation is 5 CCR § 100004.
6. The 5th Circuit case to which Travis kept referring is Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010), the opinion of which was subsequently withdrawn in part by Sonnier v. Crain, 634 F.3d 778 (5th Cir. 2011).
7. Finally, the Supreme Court case cited by Travis within the Sonnier opinion is Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), in which the Supreme Court held that content-based restrictions, including excessive security fees, violate the 1st Amendment.

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This week, the Supreme Court handed down a decision that caught some Court-watchers off-guard. It ruled that North Carolina lawmakers had violated the Constitution by using race as a proxy for divvying up voters along partisan lines. And it was surprising because the swing vote invalidating the gerrymander came from none other than Justice Clarence Thomas. On this week’s episode, we parse the outcome of Cooper v. Harris -- and what it portends for future redistricting litigation -- with Slate legal writer Mark Joseph Stern.

We also sit down with Jorge Barón, executive director of the Northwest Immigrant Rights Project. Each year, that group provides assistance to thousands of immigrants threatened with deportation. But last month, the NWIRP received a strange cease-and-desist letter from the U.S. Department of Justice, threatening its ongoing legal work and raising some concerns that the group is being singled out for its defense of immigrants caught up in the first iteration of President Trump’s travel ban. 

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Podcast production by Tony Field. 

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In this episode, we revisit what Andrew has called the worst problem in American politics:  gerrymandering -- but this time with a twist. We begin, however, with a listener question from Anna Bosnick, who is also our special guest for Law'd Awful Movies #7 - Legally Blonde! Anna watched the movie and listened to our intro and wants to know:  what exactly is habeas corpus, anyway? Then, we tackle the recent news about Montana Congressional candidate Greg "Body Slam" Gianforte.  Can he really take office if he's convicted of assault? In the main segment, Andrew and Thomas walk through the recent Supreme Court decision in Cooper v. Harris and discuss what it might mean for the future of gerrymandering legislation. After that, Andrew answers another listener question, this one from the exceptionally prescient Garry Myers, who wants to know whether corporations can assert 5th Amendment rights. Finally, we end with a brand new Thomas Takes the Bar Exam question #25 about smoking pot and crashing cars.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None!  But check out our Law'd Awful Movies guest, Anna Bosnick, and her amazing ukulele work over at worthyfools.com. Show Notes & Links

1. Don't forget to check out our prior Episode #54 on Gerrymandering.
2. In the case of Herrera v. Collins, 506 U.S. 390 (1993), Scalia opined that "of course" being actually innocent isn't grounds for habeas corpus relief, although that was walked back by the Supreme Court in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013).
3. You can also check out the Cooper v. Harris decision here.
4. Finally, the case discussed in the C segment is Hale v. Henkel, 204 U.S. 43 (1906).

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In this episode, the guys address whether the political left or the political right is the biggest threat to freedom of speech in the United States.  Their answer probably won't surprise you, but it will give you some ammunition during your next twitter fight with some dude with a Pepe the Frog icon. To tee up this subject, the guys examine the case of journalist Dan Heyman, who was just arrested (!) for trying to ask a question about the AHCA to a rather reluctant Tom Price, the guy who's Secretary of Health and Human Services and who's job description includes answering these kinds of questions. In the main segment, the guys compare the real threat to free speech with the latest complaint filed by our friends over at the Alliance Defending Freedom.  This particular lawsuit was filed on behalf of creationist lunatic Andrew Snelling, who wants to steal rocks from the Grand Canyon so he can prove something something Jesus moon lasers something and therefore, the earth is only 6,000 years old.  What you won't expect:  Andrew actually praises this Complaint!  Multiple times! After that, Andrew tackles a question from listener Thomas McCormick who -- perhaps somewhat tongue-in-cheek? -- wonders why churches are tax-exempt at all.  In (not) answering the question, Andrew also points out some special benefits churches get under the tax code. Finally, we end with the answer to Thomas Takes the Bar Exam question #24 about double hearsay.  We'll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances: None, but you should check out Thomas's other show, Serious Inquiries Only, and in particular episode #41 featuring Michael Shermer backpedaling on his the-left-is-killing-free-speech tweets and articles. Show Notes & Links

1. Mediaite has the video and some contemporaneous tweets of the Heyman arrest.
2. This is a copy of the Complaint the ADF filed on behalf of Andrew Snelling.
3. Finally, two of the special statutes that benefit churches (and only churches) cited by Andrew in the "C" segment are 26 U.S.C. § 508(c) and 26 U.S.C. § 7611.

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On April 19, 2017, the Supreme Court heard oral argument in Weaver v. Massachusetts. Kentel Myrone Weaver was convicted of first degree murder for the 2003 shooting of Germaine Rucker. In 2011, Weaver filed a motion for a new trial, claiming that he was denied effective assistance of counsel. A court officer had closed the court to Weaver’s family and other members of the public during jury selection because of overcrowding. Weaver claimed that this closure violated his Sixth Amendment right to a public trial, and his counsel had failed to object to the closure. The Supreme Judicial Court of Massachusetts affirmed Weaver’s conviction on direct appeal and declined to grant relief on his Sixth Amendment claim. -- The question before the Supreme Court is whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts. -- To discuss the case, we have Peter M. Thomson, who is Special Counsel at Stone Pigman Walther Wittmann LLC.